Scientifically and legally, the problem is similar to General Electric’s (GE) problem with dumping toxic and bioaccumulative PCB’s in the Hudson River, where, according to EPA:

From approximately 1947 to 1977, the General Electric Company (GE) discharged as much as 1.3 million pounds of polychlorinated biphenyls (PCBs) from its capacitor manufacturing plants at the Hudson Falls and Fort Edward facilities into the Hudson River.

That GE dumping poisoned 200 miles of the Hudson River, leading EPA to declare that portion of the River a Superfund site and forcing GE to cleanup the river at a cost of over $500 million.

Like GE, for almost 100 years, Dupont used and disposed of mercury compounds at their explosives manufacturing facility.

Mercury is highly toxic to humans, fish and wildlife – it bioaccumulates through the food chain. Its effects are magnified by predators up the food chain and persist for many years.

Like in the the Hudson River, because of mercury pollution, it is unsafe to eat freshwater fish in NJ – and consumption warnings are posted on Pompton Lake (but largely ignored).

Dupont wiped out an entire fishery.

And like Hudson River PCB’s, EPA has extensive national scientific and regulatory experience with mercury in the Great lakes region that is relevant to Dupont Pompton Lakes.

Like GE, Dupont wants to minimize the cost of cleanup and resists EPA cleanup mandates.

I don’t know about GE/Hudson, but in Pompton lakes, EPA Regional Administrator Judith Enck has given the community multiple assurances that EPA will hold Dupont accountable and strictly enforce environmental laws. For example, in an October 14, 2010 reply letter, RA Enck assured me that:

You have my commitment that the Environmental Protection Agency will ensure that Dupont will fulfill its RCRA obligations for this facility.

But Dupont has proposed a partial cleanup plan of just a 26 acre portion of the 250 acre Pompton Lake – no downriver sediment removal is being considered at this time. Dozens of areas of toxic soil contamination on the Dupont site still have not been cleaned up (after 30 years).

The plan is not only for only a small part of the Lake, but it is based on flawed science.

The Dupont plan must be approved by EPA under the Resource Conservation and Recovery Act (RCRA), the most important environmental law you probably never even heard of (and the polluters like it that way).

But now the Dupont plan is in EPA’s lap, which in some ways makes Dupont’s mercury problem EPA’s problem too.

Was Dupont’s plan reviewed and approved by EPA’s national scientific experts on mercury and USFWS scientists? Here’s why we need to know answers to those questions:

The residents of Pompton Lakes want the site designated and cleaned up by EPA under the Superfund program.

Thus far, their primary reasons for wanting Superfund instead of RCRA is that Superfund would bring more federal resources, a higher priority and visibility, and more community involvement in cleanup decisions.

But Jim Florio, Former NJ Governor and original sponsor of the 1980 Superfund law, just let the legal liability cat out of the bag.

The Superfund liability scheme adds another very good reason to use Superfund to compel Dupont to conduct a comprehensive and complete cleanup of the entire site, Pompton Lake, and downriver and compensate the public for huge natural resource and ecological damages they have caused (just like GE in the Hudson).

This is key because mercury pollution comes from multiple sources: coal power plants, garbage incinerators, and smelters and industrial sources.

Dupont is arguing that they are responsible ONLY for the mercury they allegedly contributed – and only via Acid Brook runoff, NOT THE TOTAL HISTORIC MERCURY AIR EMISSIONS FROM THE DUPONT PLANT AND ALL ON SITE DISPOSAL PRACTICES.

EPA has agreed to this bogus Dupont argument and that is why only a 6 inch deep small 26 acre portion of the 250 acre Lake (the “Acid Brook Delta”) sediments are being dredged.

Dupont could not get away with that under Superfund.

While it is true that EPA has less legal leverage under RCRA that Superfund, EPA still could do the right thing by forcing Dupont to scientifically establish how much mercury came from their facility and how much came from other sources.

But Dupont has not done any of that kind of work and EPA therefore has no scientific basis upon which to approve the plan. (and that’s just EPA’s problem #1)

Depending on trophic level of the fish, the EPA finding is 0.077 ppm – 0.346 ppm.

According to DEP, the fish in Pompton Lake average 0.72 ug/g (ppm).

[Update: A May 6, 2008 DEP email to Dupont specifically addressed this issue:

in order to present a balanced comparison, DuPont shall compare the average concentrations of mercury in largemouth bass from Pompton Lake to the regional average of 0.46 ug/g mercury in largemouth bass and/or the statewide average (0.44 ug/g) in the Remedial Investigation Report.

Additionally, Dupont’s ecological risk analysis is flawed, as it relies too heavily on alleged no impacts on the benthic (bottom) macroinvertebrate community structure. Community structure is a poor indicator of bioavailability, bioaccumulation, and ecological risk that I haven’t seen used anywhere else. And even if you were looking at macro invertebrates, you would be doing so to consider food chain bioaccumulation, so you would look at tissue concentration of mercury, not community structure.

However, tissue concentrations measured in the delta in 2005 do not indicate an increased accumulation of mercury by chironomids and YOY fish tissue relative to the tissue data collected during the 1998 ecological investigation. – end update]

Some limitations are that they do not identify the contaminant responsible for the observed toxicity, population impacts are not readily translated into contaminant remediation goals, and results are often confounded by variables not related to contaminant toxicity (predation, seasonal differences, physicochemical sediment characteristics, food availability).]

Similarly, Dupont sampled “young of year” (YOY) fish, which minimizes bioaccumulation as young fish haven’t lived long enough to bioaccumulate the mercury in the system.

2) There was no data or discussion of the bird sampling – other than a cursory claim of low/no adverse impact on 4 of 5 bird species sampled. What bird species? What tissue (or egg shell) concentrations found? What adverse impacts were considered?

3) There was no discussion of biological mechanisms that convert mercury they propose to leave in the sediments into bioavailable forms.

4) There was no data provided or consideration given to Dupont’s historic use of mercury compounds in manufacture.

5) There was no data or estimate of Dupont’s mercury air emissions and how those emissions deposited locally.

6) There was no dating or chemical analysis of soil or sediment cores that would suggest historic patterns of mercury deposition.

7) The full extent of mercury deposition and off-site release from the Dupont facility has not be adequately characterized.

8) There was no valid characterization of “mercury background”.

[According to the USEPA, background refers to constituents that are not influenced by the discharges from a site, and is usually described as naturally occurring or anthropogenic (USEPA, 2002a). U.S. Environmental Protection Agency (USEPA). 2002a. “Role of Background in the CERCLA Cleanup Program.” Office of Solid Waste and Emergency Response.

Background area samples should be collected from an area outside the site’s potential influence and not in locations directly influenced by or in proximity to other obvious sources of contamination.

9) There was no data provided to support apportionment of mercury in the environment as Dupont alleges to minimize their cleanup obligations (i.e. Dupont share and other source share).

10) There was no data or estimate sof total mercury loading; mechanisms and estimates of methylation; fate/transport modeling; bioaccumulation mechanisms; and human and wildlife exposure and risk assessments from air emissions, contaminated soil, surface water runoff of mercury disposed on site.

I assume that some of this data and analysis were provided in the original ecological assessment submitted to NJ DEP in accordance with State cleanup regulations (and rubber stamped by DEP’s broken cleanup program).

[Full disclosure Update: in 1995, a former NJ Governor, with DEP’s help, was shown to misrepresent the science on mercury in fish tissue to downplay risks – when I disclosed this scheme, management retaliated and I was forced out of DEP as a whistle-blower. Hit that link for all the documentation.]

Lois Gibbs speaks at community rally (1/5/12)

However, this is an EPA federal RCRA action that must be EPA approved. Accordingly, all the documents must be made available to the public during the comment period. That has not been done in this case so EPA can not approve the Dupont plan based on documents and analyses that have not been made publicly available.

III) EPA is Required to Consult with US Fish and Wildlife Service

RCRA regulations require EPA to consult with federal agencies, including the US Fish and Wildlife Service during the RCRA permit process.

We advised EPA Regional Administrator Enck on November 17, 2011 that RCRA regulations include full federal partner review including, but not limited to, U.S. Fish and Wildlife Service, National Oceanic and Atmospheric Administration, and Agency for Toxic Substance and Disease Registry, pursuant to regulation 40 CFR 124.10(c)(iii).

Certainly such consultation is required BEFORE EPA issues a “tentative approval” and proposes a draft RCRA permit for public comment.

Thus far, it appears that EPA has not complied with these consultation requirements prior to issuing the draft permit.

IV) Dupont is Required to Comply with Clean Water Act Standards

The federal Clean Water Act applies to Dupont’s water pollution discharges.

The CWA also applies to the RCRA permit process, which must meet CWA requirements.

NJ DEP State surface water quality standards (SWQS) have been approved by EPA and are federally enforceable. They trigger enforceable requirements on pollution discharge that may “cause or contribute to” a violation of a SWQS.

The SWQS have policies and narrative and numeric standards that the RCRA permit and Dupont clean up must comply with.

The Dupont proposed cleanup plan provides no discussion or demonstration regarding compliance with the legally applicable and binding provisions of the CWA or NJ SWQS.

Accordingly, EPA can not approve the Dupont proposal as a final RCRA permit in the absence of this compliance demonstration.

EPA must stand by their own science. According to the EPA supported NJ DEP wildlife criteria proposal. According to the DEP SWQS proposal (which USFWS and EPA supported)::

“As part of the 1994 approval of the New Jersey SWQS triennial review process, the USEPA, in collaboration with the USFWS, indicated that the human health based criteria for PCBs were not protective of the threatened and endangered species bald eagle, peregrine falcon, and dwarf wedgemussel. As a result, the Service prepared a Biological Opinion document in 1996 (Biological opinion on the effects of the U.S. Environmental Protection Agency’s approval of the state of New Jersey’s surface water quality standards on the bald eagle, peregrine falcon, and dwarf wedgemussel. U.S. Department of the Interior, Fish & Wildlife Service, New Jersey Field Office, Pleasantville, New Jersey. 1996). The lack of wildlife criteria for DDT and its metabolites, mercury, and PCBs was a concern to the USFWS. DDT and its metabolites, mercury, and PCBs are bioaccumulative pollutants that are persistent in the environment, accumulate in biological tissues, and biomagnify in the food chain. Due to these characteristics, the concentration of these contaminants may increase as they are transferred up through various food chain levels. As a result, adverse impacts to non-aquatic, piscivorous (fish-eating) organisms may arise from low surface water concentrations. The peregrine falcon is not a piscivorous species. However, it feeds on other piscivorous bird species. Therefore, biomagnification may be of even greater concern for the peregrine falcon.

The USEPA developed site-specific wildlife criteria for the Great Lakes based on a number of factors, including the toxicity of various pollutants and their tendency to bioaccumulate and biomagnify. In addition, the USEPA gathered and applied information about piscivorous wildlife endemic to the Great Lakes region in its derivation of water quality criteria. That effort resulted in the promulgation of numeric surface water concentrations designed to be protective of all avian and mammalian wildlife using Great Lakes waters. “

EPA must now stand by Regional Administrator Enck’s commitment and their own science and reject the Dupont proposal.

1) Dupont’s proposed cleanup of Acid Brook Delta is only partial – we demand that all mercury and all pollutants be completely and permanently cleaned up so that the Lake is fishable and swimmable as mandated by the federal Clean Water Act and NJ Water Pollution Control Act;

2) The original 1992 EPA issued RCRA permit must be enforced and has numerous loopholes that must be closed – all RCRA “SWMU’s” and off site releases which are sources of toxic soil, sediment, vapor, and groundwater contamination must be cleaned up under more aggressive schedules and obligations than those EPA unilaterally imposed in a “compliance schedule modification” on May 4, 2010 without public notice and comment;

3) Natural resource damages and toxic fish and wildlife impacts of Dupont’s pollution have not been assessed fully and must be assessed and the public fully compensated;

4) EPA must take enforcement action and collect fines such that vapor mitigation systems are immediately installed in all impacted homes.

The plume area may be larger than currently thought, when subsurface infrastructure migration is considered.

If Dupont intentionally skewed testing and analysis data to minimize its liability for clean up, then Health and Environmental enitites used that flawed data as a basis for health precautionary measure that were, resultingly, inadequate, and people were harmed or died as a result, isn’t Dupont criminally liable for concocting fraudulent reports that led to inaedequate health recommendations?

Bill- Great article and you make excellent points. It’s a shame that Judy Encks hands are tied, and Ms. Jackson is probably hesitating to list this under Superfund. Now that DuPont apologizer Tornik is gone, it’s the perfect time to bring in a real remedial project manager from the Superfund program that will completely review the entire file and make real cleanup decisions. Thanks for all of your guidance. We pulled off an awesome press conference

However, to address exactly that issue, in my comments at the public hearing I requested that EPA Inspector General and/or the US Department of Justice look into potential fraud and wrongdoing.

Additionally, there was litigation involving who knew what when (e.g. vapor intrusion), so Dupont also may other legal problems too.

Last, Dupont is under affirmative obligations to notify EPA and to disclose certain facts about releases of hazardous substances/constituents to the public under the RCRA permit – so EPA enforcement should be involved as well.

Last, I assume Dupont has legal liability for failure to warn people so they could take precautionary steps and related liability for people who built on contaminated property or bought homes in the plume area.

Of course this is al my layman’s speculation – I repeat: I am not a lawyer.

Also, for the chronology of litigation and vapor intrusion disclosures, see my prior post “F if for Fraud” – just google or word search here.

Thank you for your continued caring and involvement here in Pompton Lakes. Without your knowledge, it would be a even more difficult job for the residents with the already overwhelming tasks that were dropped on their laps in trying to help themselves clean-up their community. The residents have been thrown into dealing with this toxic legacy because of the lack of caring and support that is blantantly clear to them from by the few political puppet detractors and also by the lack of local elected official support. I cannot believe that they are trying to put this through when so many flaws exist with this permit modification and STILL there is no clean-up plan on the table for the site or for our neighborhoods. The residents still have not received the attention they deserve and it is not humane or ethical in my opinion. There is no good reason after receiving a Hazard Ranking Score of 68 in 1982 that this intensely contaminated site is still not a SUPERFUND! We need the EPA to step up and do what is necessary for us here since we know that “human exposure is not under control” and everday living here is health risk for our families and the stress level has become unbearable. If we, as residents, were to have dumped chemicals in our community, it would be a crime and we would prosecuted for the act of committing this horrible crime and rightfully so. Although there seems to be a differenct take on this for the corporate polluter here in PL, DuPont. I am baffled as to why this has been allowed to go on for three decades now and it is time the residents of this community come first.

I am neither a scientist nor a lawyer. However, onto the Compton EPA website there appear to be conflicts of facts that: Dupont has certified that the spread of contamination was under control. This certification was cosigned by the NJ DEP and the EPA. However on the data field containing that certification is an annotation stating it is not under control. The results of recent studies are that women residents of Pompton Lakes incur over 35% more cancer related visits to health care facilites than the women of six neighboring towns.

These discrepancies between Dupont’ s testing results that contamination is under control, and the reality of elevated cancer rates, indicates that Dupont’s testing could be flawed. My question is whether Dupont intentionally skewed the testing methods and analysis interpretation to minimize Dupont’s liability for cleanup and victim restitution costs. Did Dupont report the problem was less severe than it really is?

If so, and GovernmentHealth authorities used this skewed/minimize data to formulate heath and safety measures for the residents of Compton Lakes, and resultingly, people died or became sick, then I believe Dupont should face criminal prosecution.

Your own research reveals that Dupont has used testing methods that would minimize indications of contamination. A pattern of practice of this minimization of their environmental damage could indicate fraud. This question could be investigated by a Federal Grand Jury investigation of all Dupont’s testing, including the subpoeana of all Dupont personnel and their contractors, plus, all records and data involved.

I believe a criminal prosecution is far more direct and swift than the civil process which are usually much more prolonged. Furthermore, I believe that with a criminal conviction and sentencing, the Government’s would have more latitude and ability seize Dupont’s assets and to order clean-up, restitution to the victims and their families, property buy-outs, upon the pain of the Dupont’s forfeiture of their assets.

When I see a document co-signed by Dupont, the NJ DEP and the EPA, that the spread of contimination is under control, it appears to me that Dupont has successfully entangled the State of NJ and the Federal EPA as “co-conspirators” to possibly intentioanlly minimize Dupont’s exposure to liability for its pollution and contamination of Pompton Lakes.

Consequently, this whole thing appears to be going in perpetual circles of each agency covering its A$$, claiming the other agency is the action action, or, the “inaction,” and so on and so forth.

A Dept of Justice Federal Grand Jury Investiogation to determine if there has been fraud/obfuscation of the real danger and harm to Pompton Lakes, and if this fraud has contributed to the death and sickness of Pompton Lakes citizens could cut through all of the inter-agency inertia/paralyzation.

The time for playing Mr Nice Guy with Dupont and its lawyers and with the other polluters of Pompton Lakes, plus, the various agencies, has passed. I say get them all before a Federal Grand Jury, including the agencies.

The US Attorney of NJ,Paul Fishman, could convene an Investigative Grand Jury and appoint a multiagency, DOJ/EPA/Fish and Wildliife, etc task force. Secrecy is essential during the investigative stage of a prosecution. Grand Jury witnesses need to feel secure from retaliation. The incriminating facts would come out at trial.

Most of the criminal activity and cover up, (if any), occurred long before the Obama EPA.

Now that this case is starting to get more and more media coverage it becomes increasingly politically risky to decline to take action.

You could demand a “Letter of Declination” from the US Attorney’s office. It is actually routine for them to issue these letters. For example, if an agent presents a case and it is declined due to insuficient evidence, or, otherwise fails to meet Fed guidelines, the agents supervisor may inisit on a declination letter to close the case.

The DOJ does pretty good “Public Coruption” investitgations. We just saw Balajo get 14 years art “Club Fed.”

If a Federal Grand Jury subpoeanas the EPA and the USFWS for testiminy or for docuemntary evidence, they must comply.

However, I believe that teh EPA and the WSFWS would want to be part of the investigative team.

If you cut loose federal agents on Dupont and the agencies they would tear Dupont and any conspirators apart like wild animals looking for evidence. Its the management that is hard to bring on board. They like to see x number of statistics/prosecutions for x amount of investigative man hours.

To sort out 100 years of likely pollution could take awhile. But, as far as I can tell, only the Feds have the investigative and analytical resources to be able to put it all together, and most importantly, enforce judgements and compel the polluters to clean up and make restitution.

@Phillip Bonner – Phil is onto something and as I mentioned in the hearing if a resident were to dump chemicals we would be prosecuted and probably end up right in prison. How is ok for this corporate polluter to do what they have done to PL and the residents living here and after decades still no real clean-up has been done? I just don’t get it…Michael Keough’s petition is requesting an indepedent federal investigation but to-date nothing has been done. You would think after all these years there would be some sort of investigation but decades later we continue to rely on DuPont’s data….scary thought.

Time to grab Dupont and other polluters by the …. until they cough up a full clean up and restitution of the victims. Time for the offenders to face justice and to make Pompton Lakes and the victims whole. Enough of the perpetual governmental agency merry-go-round!

Lastly, the EPA and NJ DEP appear to be conspirators by blindly endorsing Dupont’s testing and analysis. However, msot are probably “unwitting conspirators” insofar as they were just following procedures in effect at that time; Procedures that the pollutors’ lawyers knew how to exploit…

Still, its fraud if Dupont and other polluters were intentionally skewing envoironmental testing and analysis, minimizing their impact and potential liability, and reporting this inaccurate data.

If found guilty and the consequences of that fraud were inadequate health safety measures that resulted in death and sickness, Dupont and the other polluters would be dead to rights.

Civil damages woud be astronimical but I believe they would also incure extremely severe punitive damnages for such prolonged inaction… not to mention criminal penalties… somebody would be doing the “Federal Shuffle” being led away from the courthouse in handcuffs, off the Club Fed for awhile.

I believe that this is so egregious and has been neglectedd fo rso long with such dire consequences, that the people of Pompton Lakes deserve both remunerative and criminal justice.

Investigators should interview or subpoena EPA and DEP managers and scientist to probe the question of who knew what when and wheterh Dupont exerted political pressure to block or delay EPA and/or DEP from taking regulatory action.

Specifically, look at the timing of the litigation settlement liability waiver and the disclosure of the vapor intrusion problem shorty after the ink was dry on that settlement.

It is not a stretch to theorize that when there is litigation against Dupont, that they have blocked regulatory agencies from taking action on science or regulatory matters that would help plaintiffs suing Dupont.

Do timelines of Dupont political contributions compared to evironmental agency actions. Too bad that lobbying and campaign support is how the those with wealth legally corrupt our system. Got to catch them in a pattern of practice falsification of reporting. With the DEP and EPA possibly just routinely rubber stamping Dupont’s environmental impact reports, (I haven’t seen any Govt verification testing to determine the validity of Dupont’s own testing methods and reporting), I’d bet that it was very tempting to “dummy up” a lot of stuff.

I am saying that it is possible that Dupont met with high officials (Gov. Office, legislators, or DEP Commissioner) who then leaned on DEP scientists and told them to stand down on taking any actions – like publishing research papers, finalizing risk assessments, proposing soil, groundwater, or drinking water standards, taking enforcement actions, etc – that could legitimize and benefit plaintiff’s lawsuits.

Exactly Bill, and none ofthose legislators and Commissioners want tobe holding the bag in the end doing the “Federal Shuffle.” Swear them in as witnesses under secrect Grand Jury investigation, give them an immunity deal if they cooperate, and they will start blabbing to save their own skins.

It works both ways. A US Attorney or even an Attorney General and President could get a lot of mileage taking down Dupont and the system of corruption which has protected it,either intentionally or unwittingly.
I’ll bet there are a bunch of Dupont/Pompton-like cases mired in such tangles of Govt red. Tape, going nowhere,with offenders enjoying their impunity.

@Lisa Riggiola
Lisa – trying to get to the bottom of this is like a chinese puzzle.

Numerous documents are cross referenced – changes have been made over time – many of the documents are not available in electronic form, such as most of the DEP Technical documents and the Appendices to the EAP documents.

It is virtually impossible to unwind the science and regulatory decision making by EPA.

This would take a trained team of scientists and lawyers several weeks.

On top of all that, I just received (on Monday – 5 days before the close of the comment period) a TROVE of emails and documents between DEP, Dupont and EPA thatr reveal that DEP was working with and for Dupont, and EPA was watching on the sidelines (when not actively engaging to avoid public participation requirements).

OMG, and here were HUMAN BEINGS that are innocent and did nothing wrong but being totally disregarded. BTW, did you get a chance to read Senator Menendez’s letter I sent over your way? Very strong letter demanding that the EPA provide rationale as to why the DuPont Pompton Lakes Works site has not been designated a SuperFund.